Virginia advisory opinion concludes that sending lawyer who includes client in email to opposing counsel consents to “reply-all.”

Last week, the Virginia Supreme Court approved Legal Ethics Opinion 1897.  Regular readers will recognize the title topic: “RULE 4.2 – REPLYING ALL TO AN EMAIL WHEN THE OPPOSING PARTY IS COPIED.” 

I’ve blogged and spoken on this issue often.  I’ll continue to do so as long as lawyers continue to contact me to express concern about receiving emails from opposing counsel that are copied to opposing counsel’s client.

Here’s V.R.Pr.C. 4.2:

• “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” (emphasis added).

And here’s the Virginia State Bar’s conclusion:

• “A lawyer who includes their client in the ‘to’ or ‘cc’ field of an email has given implied consent to a reply-all by opposing counsel.”

I find the opinion notable. For many years, advisory opinions cautioned against copying a client on an email to opposing counsel but stopped short of concluding that, by doing so, the sending lawyer consents to a “reply-all” by the receiving lawyer. Virginia did not stop short and, in fact, was quite clear in its conclusion. 

The Virginia opinion comes on the heels of this opinion that the New Jersey Supreme Court’s Advisory Committee on Professional Ethics issued in March 2021. In it, the ACPE stated:

• “lawyers who include their clients in the ‘to’ or ‘cc’ line of a group email are deemed to have provided informed consent to a ‘reply all’ response from opposing counsel that will be received by the client.”

A trend seems to be emerging.[1]

The Virginia opinion includes guidance related to a sending lawyer’s duties to provide competent representation and to take reasonable precautions against the inadvertent disclosure of confidential information. 

• “Including or copying the lawyer’s client risks not only that the opposing lawyer, or another recipient of the email, will respond directly to the lawyer’s client, but also that the lawyer’s client will respond in a way that the lawyer would not advise or desire.”

It goes on to include guidance on tech competence.

• “Lawyers should note that merely blind copying their own client, while including other recipients in the ‘to’ field, will not fully prevent these issues; a blind copied client may still be able to reply all to everyone who was in the ‘to’ field of the original email.”

Now, for you transactional lawyers who are thinking about rolling your eyes, please check out this post on Brian Faughnan’s Faughnan on Ethics [2]

I’m not aware of a situation in which a client mistakenly replied to all, making disclosures that the lawyer wished the client wouldn’t have made.

Yet.

It’s bound to happen.  And when it does, trends suggest that the cc-ing lawyer might not be able to rely upon “how was I to know?”

As always, let’s be careful out there.

Related posts:

• Copying clients on emails to opposing counsel
• New Jersey committee concludes that lawyer who copies client on email to opposing counsel impliedly consents to “reply-all.”
• CC, BCC, and a lawyer’s duty of competence
• CC and “reply-all:” BCC is NOT the answer

Advisory Opinions

• Washington State Bar Association, Opinion 202201 (February 2022)
• Pennsylvania (Opinion 2020-100, 1/22/20)

• Alaska (Opinion 2018-1, 1/18/18)
• Kentucky (Ethics Opinion KBA E-442, 11/17/17)
• New York (Opinion 1076, 12/8/15)
• North Carolina (2012 Formal Ethics Opinion 7, adopted 10/25/13)
• New York City Bar Association (Formal Opinion 2009-01 1/2/09)

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[1] Important note for receiving lawyers: the trend is that opposing counsel has consent that you may “reply-all.”  Nothing yet suggests that the cc is consent to communicate directly with opposing counsel’s client without including opposing counsel in the loop.

[2] Brian’s post included: “Now transactional lawyers may be screaming at me here for my naivete, but, unless you are truly trying to mimic a situation where lawyers and clients are all sitting around the table and having a discussion, I don’t think including all of those parties on an email thread makes sense. (And, it’s 2022, if that’s what you are trying to do then use some other communications platform at this point whether that be Zoom or WebEx or Teams or something else.) Otherwise, whatever you want your client to see, just forward the email thread to them separately. Doing anything else, absent a clear agreement among the counsel involved about whether communication is permitted is simply an unnecessary risk to take.”